MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment dated 31-10-1995 passed in Intra-Court Appeal No,57 of 1985 by a Division Bench of Lahore High Court, Lahore.
2. The relevant facts giving rise to this appeal are that Muhammad Siddique son of Ali Muhammad, respondent No,6 herein, a displaced person from East Punjab, was allotted land in Chak No,38/GB, Tehsil Jauharabad, District Lyallpur (Faisalabad), Tehsil Chunian of District Kasur and also in districts Jhang, Sheikhupura, Lahore and Mirpur Khas, Sindh, against his verified claim. Muhammad Siddique secured allotment of 25864 P.I. Units as against his total entitlement equal to 11981 P.I.
Units, therefore, the appellant and others moved separate applications under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 to the Chief Settlement Commissioner for cancellation of allotment of land obtained by Muhammad Siddique through fraud in excess of his entitlement. The Chief Settlement Commissioner sent these applications to his delegate, Deputy Secretary (Rural) exercising powers of Settlement Commissioner for necessary action and subsequently the same were entrusted to the Additional Commissioner-(Consolidation) who while exercising the delegated powers of Settlement Commissioner, Multan Division disposed of these applications vide order dated 6-5-1977 and directed for the cancellation of allotment obtained byMuhammad Siddique in different districts in excess of his entitlement. The above order of Settlement Commissioner was challenged by the respondents by way of filing a Constitution petition bearing No,1140-R of 1977 in the Lahore High Court, Lahore which was allowed by a learned Single Judge vide judgment dated 15-1-1980. The present appellant being aggrieved of the judgment in the writ petition filed an Intra-Court Appeal in the High Court which was dismissed by a Division of the High Court through the impugned judgment on the ground that it was not competent. Leave was granted in the present appeal vide order dated 16-2-1997 as under:- "Bassi petitioner alongwith Kanwar Waisal respondent No,9 herein moved an application under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 for cancellation of the allotment obtained by Muhammad Siddique respondent No,6 (who has since died and is represented by his legal heirs. Settlement Commissioner, Multan (with the powers of Chief Settlement Commissioner) allowed the Mukhbari application and cancelled the allotment of Muhammad Siddique vide order dated 6-5-1977 with further direction that the land so cancelled by allotted to the petitioner and other informants. Respondents Nos. 1 to 4, 7 and 8 who claimed to be the purchasers from the aforesaid allottee challenged the order of the Settlement Commissioner, in Writ Petition No,1140-R of 1977 which was accepted by a learned Single Judge of Lahore High Court vide order dated 15-1- 1980. Kanwar Waisal respondent and the petitioner preferred an appeal (I.C.A. No,27 of 1980) against the order of the learned Single Judge which has been dismissed as incompetent by a learned Division Bench of Lahore High Court vide order dated 31-10-1995. The learned Judges have held that since the dispute before the learned Single Judge had arisen out of the proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, 'this Intra-Court Appeal on the face of it is not maintainable'. Reliance for this view was placed on Mst. Karim Bibi and others v. Hussain Baldish and others PLD 1984 SC 344).
2. Petitioner seeks leave to appeal against the order dismissing the Intra-Court Appeal as incompetent.
3. We have heard the learned counsel for the petitioner as also the learned counsel appearing for.
The respondents/caveators. It was contended by the learned counsel for the petitioner that the order passed in the proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was 'original order' within the meaning of section 3(2) of the Law Reforms Ordinance, 1972 as amended and it was not subject to the incidence of appeal revision/review and as such Intra-Court Appeal against the judgment/order of the learned Single Judge of the High Court passed in Constitutional jurisdiction was competent. According to the learned counsel; the case of Mst. Karim Bibi (supra) relied upon by the learned Judges of the High Court is distinguishable. The contention raised needs consideration. We, therefore, grant leave to appeal in this case to examine the afore-noted contention."
3. The essential question for determination in the present appeal would be whether the order impugned in the writ petition passed by Settlement Commissioner, Multan, exercising the delegated power of Chief Settlement Commissioner was open to appeal or revision or not. It was held in Tufail Muhammad v. Muhammad Zia Ullah Khan (PLD 1965 SC 269) and Zulfiqar Ali Khan v.
Muhammad Mubarak Khan (1970 SCM R 38) that an order passed under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 by the Settlement Authorities as delegatee of Chief Settlement Commissioner under section 30(2) would not be subject to appeal or revision me Chief Settlement Commissioner under sections 18 and 19 of Displaced Persons (Land Settlement) Act, 1958. This legal position was subsequently changed on the addition of subsection (3) of section 30 of Displaced Persons (Land Settlement) Act, 1958 by virtue of Evacuee Property and Displaced Persons Laws (Amendment) Ordinance (I of 1972) published in Gazette of Pakistan Extraordinary issue, dated 19th January, 1912. This subsection reads as under:- "(3) Any order passed by a Settlement Commissioner or an Additional Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be and shall be deemed always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional. -Deputy or Assistant Settlement Commissioner, as the case may be, is so subject."
4. The power under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was exercisable by the Chief Settlement Commissioner or his delegate as the case may be, only in a case in which the allotment was obtained by fraud, misrepresentation or in excess to the entitlement and after insertion of subsection (3) in section 30 of Displaced Persons (Land Settlement Act, 1958 the order passed under the above provisions of law would be subject to appeal and revision.
5. Learned counsel for the appellant has contended that the order arising out of the proceedings under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 after repeal of the said Act by virtue of Evacuee Property Displaced Persons (Laws) Repeal Act, 1975 would be final as it was not challengeable by way of an appeal. Review or revision under the Repealing Act. The remedy of a revision made available against the order of Settlement Commissioner under section 21 of Displaced Persons (Land Settlement) Act, 1958 before the High Court was also taken away be deleting the said section from the statute on 31-7-1973 by virtue of Act L of 1973 and thus a person aggrieved of an order passed by the Settlement Authorities under sections 10 and 11 of Act 1958 after repeal of the evacuee laws with effect from 1-7-1974, had no other remedy except to invoke the Constitutional jurisdiction of the High Court.
6. Learned counsel appearing on behalf of respondents. On the other hand, has opposed this appeal firstly on the ground that the land pertaining to the allotment of Muhammad Siddique under Displaced Persons (Land Settlement) Act. 1958 was allotted to the present appellant by the notified officer in exercise of power under Evacuee Property and Displaced Persons Laws (Repeal)
Act (XIV of 1975) and the order challenged in the writ petition being arisen out of the proceedings pending at the time of repeal of evacuee laws, would not be an original order either under Act of 1958 or Repealing Act of 1975, therefore, the I.C.A. Would not be competent against the order passed in the writ petition and secondly. The order passed in consequence to the proceedings under sections 10 and 11 of Displaced Persons (Land Settlement) Act. 1958 initiated before the Repeal of Evacuee Laws would be open to appeal or revision under Displaced Persons (Land Settlement) Act, 1958, therefore, notwithstanding the repeal of evacuee laws, the order would not be deemed to be an original order.
7. Learned counsel for the parties also made an attempt to argue the controversial question of fact relating to the entitlement of Muhammad Siddique and the rights of respondents in the land, as bona fide purchasers for value but since the High Court has not decided the I.C.A. On merits, therefore, we would confine ourselves to the limited question relating to the maintainability of the I.C.A. Against the order passed in the writ petition. The order challenged in the writ petition in the present case arose out of the proceedings commenced under section 10 of Displaced Persons (Land Settlement) Act, 1958 which provided as under:-- "Section.10. Power of Chief Settlement Commissioner to cancel allotment.--If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fraud or false representation then without prejudice to any other penalty to which such person may be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment, or reducing the area of the land allotted or such other order as he may deem fit."
8. The original order of allotment of land under Displaced Persons (Land Settlement) Act, 1958 in the name of Muhammad Siddique was not challenged through the normal remedies of review, appeal or revision available under the statute and the provisions of sections 10 and 11 of the said Act, were invoked on a miscellaneous application wherein it was asserted that allotment was obtained by means of fraud and finally the order of allotment was cancelled by the notified officer in 1977.
Before the repeal 'of the evacuee laws such an order passed by the Settlement Authorities by virtue of subsection (3) of section 30 of the Displaced Persons (Land Settlement) Act, 1958 which was added in 1972 would be subject to appeal and revision, but after the repeal of evacuee laws with effect from 1-7-1974 no such statutory remedy of appeal and revision was available against an order passed by the notified officer. The appellant and revisional forums available under the relevant statutes before the repeal of evacuee laws, stood abolished on repeal and all matters pending before the Settlement Authorities were transferred to the notified officers appointed under the repealing Act of 1975. In the present case, the notified officer in exercise of his powers as Settlement Commissioner after cancelling the allotment from the name of Muhammad Siddique, vide order dated 5-6-1977, allotted the land to the appellant as an available property under the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 19751. The above order arising out of the proceedings under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 if would have been passed before the repeal of evacuee laws, would definitely be open to the statutory remedy of appeal or revision, but the same having been passed by the notified officer after' repeal of evacuee laws could not be challenged through appeal or revision for want of availability of such remedies under the law applicable after repeal and would be the original order.
This Court in Muhammad Latif & Co. v. Chief Settlement and Rehabilitation Commissioner (PLD. 1974 SC 130) held as under.-- "The argument in our opinion is without substance. It rests on the erroneous assumption that the jurisdiction of the Chief Settlement Commissioner under section 11 is assailable to his revisional jurisdiction under section 19(1) of the Act. Section 11 occurs in Chapter IV of the Act, beginning with section 9, which creates a hierarchy of various Settlement Authorities with the Chief Settlement Commissioner at the apex. Section 10 gives plenary power to the Chief Settlement Commissioner to cancel or to reduce an allotment when he is satisfied that the allotment has been obtained by 'fraud or false representation'. Exercisable under this section is not hedged by any condition except that an allotment or lease can be cancelled or terminated for reasons to be stated in writing. It is important to observe that under this section, power of cancellation or termination is to be exercised otherwise than for reasons of fraud or misrepresentation and is available both in respect of allotments and leases. Under subsection (2) (ibid), the allottee whose allotment or a lessee whose lease has been cancelled is required to surrender the possession to the Chief Settlement Commissioner, or any person authorized by him in that behalf. In the event of his refusal so to do, subsection (3) (ibid) empowers the Chief Settlement Commissioner to eject the person concerned by the use of minimum force. Thus it will be seen that this section provides a complete code for the cancellation of allotment- or termination of lease by the Chief Settlement Commissioner.
Section 19 on the other hand occurs in Chapter VI, which contains provisions relating to appeals, revision and review including the power of revision by the High Court under section 21 of the Act, which like the suo motu revisinal power of the Chief Settlement Commissioner lies on a law point only. There is no such qualification or limitation in respect of cases falling to be dealt with under section 11. Therefore, in our opinion it is plain that the provisions of sections 11 and 19 deal with distinct matters. The words 'subject to the other provisions of this Act' in section 11 merely connote the fact that an order made by the Chief Settlement Commissioner under section 11 is not final but is subject to the incidence of revisional jurisdiction of the High Court under section 21, which in the instant case, the appellants also unsuccessfully invoked. Sections 10 and 11 are in pari materia and having regard to their provisions, in our opinion the Legislature advisedly did not make their operation subject to any period of limitation."
In the light of above, it is clear that the proceedings initiated on an application under section 10 of Displaced Persons (Land Settlement) Act, 1958 would not be deemed to be in continuation of the original proceedings giving rise to the order of allotment and the order passed in the subsequent proceedings would not be challengeable by way of an appeal or revision under Displaced Persons (Land Settlement) Act, 1958 after its repeal by virtue of Evacuee Laws Repeal Act, 1975, therefore, the order passed by the notified officer in exercise of his powers as Settlement Commissioner under section 3 of the Evacuee Laws. Repeal Act, 1975 in the pending proceedings would be deemed to be an original order for all intents and purposes.
9. The remedy of Intra-Court Appeal is provided under section 3 (2) of Law Reforms Act, 1975 which reads as under :--- "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under subparagraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."
11. The I.C.A. Thus is competent only in a case in which the order passed in the writ petition arises out of the proceedings in which the statutory remedy of appeal and revision is not available at the time of passing the original order in the said proceedings. The learned Division Bench in the High Court while placing reliance on Mst. Karim Bibi and others v. Hussain Bakhsh and others (PLD 1984 SC 344) dismissed the I.C.A. In the present case on the ground that the order challenged in the writ petition being subject to appeal and review, was not an original order.
12. In Karim Bibi v. Hussain Bakhsh (PLD 1984 SC 344) this Court held as under:-- "8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal against the original order then no appeal would be competent from the order of a Single Judge in the Constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the 'original order'. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitution petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore. The relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not, apparently the meaning of the expression 'original order' is the order with which the proceedings under the relevant statute commenced."
13. The term "proceedings" was examined by this Court in Nawab Dinv. Member, BOR PLD 1979 SC 846 with reference to section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 and its definition as given in the book "Words and Phrases" in the following manner was relied upon:-- "The term 'proceedings is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite, steps by which judicial action is invoked. A 'proceeding' would include every step taken towards .The further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be .Achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
14. The proceedings commenced under sections 10 and 11 of Displaced Persons (Land Settlement)
Act, 1958, in the present case before the repeal of evacuee laws finally culminated in the order passed by the notified officer under Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) which contained no provision for an appeal, revision or review against the order of notified officer and therefore, the bar under proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 would not be attracted.
15. The dispute in Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 (supra), was in respect of double allotment of evacuee property under Displaced Persons (Land Settlement) Act, 1958. The first PTD was issued in 1962 as shops and the second PTD was issued in 1964 as building site. The subsequent transfer was challenged by the first transferee before the Chief Settlement Commissioner who sent the matter to Settlement Commissioner and the Additional Settlement Commissioner vide order dated 24-12-1973 held that subsequent transfer was without jurisdiction and unlawful. This order was challenged in the High Court in its Constitutional jurisdiction and a learned Single Judge while setting aside the order, remanded the case to the Settlement Commissioner for decision afresh. The order of learned Single Judge was challenged in L.P. Appeal and learned Divisional Bench dismissed the L.P.A. On the ground that the same under section 3(2) of Law Reforms Ordinance, 1972 was not competent.
16. The original order in the above case arose out of the proceedings commenced on the transfer of property by Deputy Settlement Commissioner in 1962 and the matter came up before the High Court much before the repeal of evacuee laws when the remedy of appeal and review under the relevant statute was available whereas in the present case the proceedings commenced on the application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 before the repeal but the same culminated in the final order passed by the notified officer in exercise of his powers as Settlement Commissioner in 1977 under Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) which provided no appeal or revision against the order of notified officer and consequently, the order impugned in the writ petition was original as well as final order which could only be challenged before the High Court in its Constitutional jurisdiction. The net result is that dismissal of I.C.A. In the present case on the ground of being incompetent on the strength of law laid down by this Court in PLD 1984 SC 344 was not correct.
17. In the light of above discussion, we hold that the order impugned in the writ petition being not arising out of the proceedings in which the law applicable after repeal of evacuee laws provided no remedy of appeal or revision, therefore, the bar , of Intra-Court appeal contained under section 3(2) of the Law Reforms Ordinance, 1972 would not be applicable to such an order. We, therefore, set aside the judgment impugned in this appeal and remand the case to the High Court for decision of I.C.A. On merits. The appeal is allowed with no order as to costs.